THE Lusaka High Court has halted Zambia National Broadcasting Corporation from airing the Stand Up for Zambia programme.
Delivering ruling in a case where Patriotic Front leader Michael Sata sought an injunction to restrain Chanda Chimba III from broadcasting Stand Up for Zambia documentaries on Zambia National Broadcasting Corporation, Muvi TV limited and Mobi TV International, judge Patrick Matibini said freedom of expression was not absolute or limitless and its exercise may be subject to restrictions as are necessary in a democratic society.
"I hereby grant an interim injunction restraining the defendants, each one of them either by themselves, their agents, or servants from publishing or broadcasting or causing to be broadcast the programme, Stand Up for Zambia, until after the trial of this action," stated judge Matibini on Tuesday. "The first defendant is restrained by himself, his agents, servants, or whomsoever from producing, distributing, or in any other form of transmission the said Stand Up for Zambia programme."
He stated that the right to free speech was one in which it was of public interest that individuals should possess and exercise as long as no wrongful act was done.
"Needless to state that it is contempt of Court for any person notified of this Order knowingly to assist in or permit a breach of the Order. A person doing so may be fined, or sent to prison. Should I later find this Order has caused loss to the defendants and decide that the defendants should be compensated for that loss, the plaintiff shall comply with my order that I will make," he stated. "I have the discretion to grant an interim injunction in order to restrain libel. However, it is settled law that I cannot restrain the publication of libel where the defences of justification, fair comment, or privilege have been raised. The rationale for this rule is the importance in the public interest that the truth should come out."
Judge Matibini stated that the right to free speech must be measured or weighed against the right to reputation and must be respected.
"It must not be assailed without lawful justification. Once besmirched by unfounded allegations, the damage can be irreparable and everlasting, especially if there is no opportunity given to vindicate one's reputation," he stated.
Judge Matibini stated that he could not also lose sight of the context in which the statement complained of was broadcast.
"In my opinion it is palpably wrong for any person before or during an election to publish false statements in relation to any candidate's personal character or conduct for the sole or dominant purpose of adversely affecting the return of such candidate, unless or of course he clearly show and adduce reasonable evidence and grounds for believing in fact that the defamatory material is true, is a fair comment on matter of public concern, or is protected by qualified privilege as posited above."
On November 26, 2010, Sata, through his lawyer Bonaventure Mutale, filed a writ of summons claiming general and exemplary damages for defamation of character in the broadcast by the defendants of the television programme entitled Stand up for Zambia; the Venom of the Cobra and Stand up for Zambia the Unholy Alliance. He sought to restrain the television stations from further publishing or broadcasting the said defamatory words and images. Sata also wanted an injunction restraining Chimba from producing, distributing or selling DVDs, CDs or any other form of transmission of the said programme. Sata sought any relief the court deemed fit and costs.
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